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Knight v. Ottrix

Court of Appeals of Virginia

November 13, 2018

GARY D. KNIGHT, JR.
v.
HOWARD OTTRIX AND KAHLILAH OTTRIX

          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Martin, Jr., Judge.

          Catherine R. Daugherty for appellant.

          Jennifer B. Shupert; Kerriel Bailey, Guardian ad litem for the minor child (Shupert Chaing; K. Bailey Law, PC, on brief), for appellee.

          Present: Judges Petty, Chafin and Senior Judge Frank Argued at Norfolk, Virginia.

          OPINION

          WILLIAM G. PETTY JUDGE.

         Gary D. Knight, Jr. appeals an order by the circuit court finding, upon de novo review of a decision by the Norfolk Juvenile and Domestic Relations District Court (JDR court), that Knight had withheld consent to the adoption of his child contrary to the best interests of the child. Because we conclude that the circuit court had no jurisdiction to enter the order appealed from, we vacate the order.

         BACKGROUND[1]

         A child was born to S.M. (mother) and Knight in November 2005. A hospital social worker contacted the Norfolk Division of Social Services (department) because of concerns regarding mother's interactions with child. A few days after her birth, the child was removed from mother's custody by the department because mother had exposed the child to cocaine in utero. Immediately upon her discharge from the hospital, the child was placed with Howard and Kahliliah Ottrix (custodians) who stated they were willing to care for the child until the mother was stable and could care for her child.[2] After an emergency removal order, the JDR court issued a preliminary removal order based on its finding of abuse and neglect. Two months later, mother and Knight appeared, each with counsel, for a hearing regarding the custody of the child. At that time, the JDR court issued a dispositional order on behalf of the department, which specified visitation rights for the parents and services they needed to complete if they wanted to regain custody of their child. The JDR court reviewed and affirmed the custody arrangement and parental requirements during December 2006, when the child was about one year old. In December 2007, the circuit court granted sole legal and physical custody of the child to the custodians. Although Knight had attended two parenting classes and participated in a few supervised visits with his child, the circuit court found he had failed to complete the remedial steps ordered by the court. This was due in part to Knight's arrest and subsequent conviction for grand larceny. The court ordered that neither mother nor Knight was to have any visitation.

         After being released from prison in 2015, Knight sought visitation. In an order denying visitation, the circuit court noted it was

shocked that [the department] would close a case on an infant who was certainly adoptable without insuring that she had a permanent placement in her formative years. It [was] only happenstance that [child] has lived with the [custodians] in what appears to be a wholesome environment without the intervention of her biological parents. Indeed, had [the department] followed through with permanent placement, i.e., adoption planning, [child] would not now be suffering the inevitable stress she bears incident to this litigation.

         In 2017, the custodians filed a petition asking the JDR court to accept mother's and Knight's consent to adoption of the child by the custodians. The custodians asked that, in the alternative, the JDR court find that consent was being withheld contrary to the interest of the child and was therefore not required for the adoption. After a hearing at which mother and Knight were represented by counsel, both parents refused consent to the adoption. The JDR court then found that mother and Knight each were withholding consent to the adoption contrary to the child's best interests.[3]

         Knight appealed the JDR court's ruling to the circuit court. By order dated February 15, 2018, and after a de novo review, the circuit court agreed with the JDR court's finding that Knight was withholding consent contrary to the best interests of the child. Knight now appeals to this Court.

         ANALYSIS

         "Subject matter jurisdiction is a threshold question. It is a question of law we review de novo."[4]Parrish v. Fannie Mae, 292 Va. 44, 49, 787 S.E.2d 116, 120 (2016) (citation omitted). "In deciding questions of subject matter jurisdiction, we are not limited to the arguments raised by the parties." Id. (quoting Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755 (1990)). It is well-established that courts may raise questions of subject ...


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